PLEASE READ THE TERMS AND CONDITIONS OF THIS SOLARIS 10 BINARY APPLICATION GUARANTEE PROGRAM AGREEMENT (THIS "AGREEMENT") CAREFULLY. BY CLICKING ON THE "ACCEPT" BUTTON, BELOW, YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT AS OF THE DATE YOU CLICK THE "ACCEPT" BUTTON. IF YOU DO NOT AGREE TO ALL THESE TERMS, SELECT THE "DECLINE" BUTTON AT THE END OF THIS AGREEMENT. IF YOU SELECT THE "DECLINE" BUTTON, YOU WILL NOT BE ABLE TO PARTICIPATE IN THE SOLARIS 10 BINARY APPLICATION GUARANTEE PROGRAM.

This Solaris 10 Binary Application Guarantee Program Agreement ("Agreement") is made between Sun Microsystems, Inc., with its address at 4150 Network Circle, Santa Clara, California 95054, and [Organization Name from Submission Form] with an address at [Address from Submission Form]('Party') as the Customer who submits an Eligible Application, and is made as of the date Party receives notification from Sun that Party's Eligible Application has been Accepted. The parties agree as follows:

1. DEFINITIONS

1.1 Acceptance or Accepted: Notification by Sun to Party that Party's application submitted in accordance with the Submission Process is an Eligible Application. Determination of whether a submitted application is an Eligible Application is at Sun's sole discretion.

1.2 Customer: Either 1) a Sun customer who has an authorized license for the Solaris 10 operating system and who has an Eligible Application; or 2) a developer or Independent Software Vendor ("ISV") who has an authorized license for the Solaris 10 operating system and develops an Eligible Application and licenses such Eligible Application to third parties.

1.3 Eligible Application: Any application developed by or for Party which: 1) ran without problem on an Existing Solaris System; 2) experiences a significant problem running on the Solaris 10 OS on Supported Platforms as defined in the Hardware Compatibility List at http://www.sun.com/bigadmin/hcl (available failure reports must be provided to Sun upon request); 3) is used in a production environment or is commercially available; 4) is using standard interfaces or libraries

1.4 Existing Solaris System: Solaris Operating System version 2.6, 7, 8, 9, or Solaris 10 running as a host operating system when evaluating the Eligible Application, or,  running Solaris 10 as a guest operating system in a Virtualized Platform Environment when evaluating the Eligible Application.

1.5 Guarantee: As defined in Section 5 below.

1.6 Submission Process: 1) fully complete the submission form found at sun.com/software/solaris/programs/binary_guarantee_form.jsp, including a description of your significant problem, and read and accept the terms and conditions of the Agreement.

1.7 Supported Platforms: systems specified in the Hardware Compatibility List at http://sun.com/bigadmin/hcl.

1.8 Virtual Platform Environment: Virtual Machine abstraction of the hardware platform to the Solaris Operating System.  See the Hardware Compatibilty List at http://www.sun.com/bigadmin/hcl for the supported Virtual Platform Environments.

2. TERM

The Agreement shall commence when Sun notifies Party that its application has been Accepted as an Eligible Application and the Agreement shall terminate the earlier of when Sun notifies Party: i) of a remedy pursuant to Section 4.4 below, or ii) Sun has reached the maximum of one hundred staff hours as described in Section 4.5 below.

3. CONFIDENTIAL INFORMATION

Party shall not disclose any Sun confidential information, including the results of any tests or services provided under this Agreement, to any third party. Party shall only disclose confidential information to its employees who have a need to know for purposes of this Agreement.

4. REMEDY FOR AN ELIGIBLE APPLICATION

4.1 Once Sun receives a submission, Sun will make reasonable efforts to respond to Party within thirty (30) days to notify Party whether the submission qualifies as an Eligible Application, or whether Sun needs more information to make a determination.

4.2 Party must provide to Sun any other information which Sun believes, in its sole discretion, is necessary either to determine whether the application is an Eligible Application, or to diagnose the problem, including without limitation:
a) a binary copy of the application;
b) failure reports and all other test data associated with the reported problem;
c) information regarding configuration, workload, other applications that are running, and system environment.
d)either:
i) access to Party's system containing all binaries necessary to run the Eligible Application on Party's system remotely, or
ii) all binaries and any other information deemed necessary by Sun to reproduce the problem reported for the Eligible Application.

f) all information Sun needs in order to replicate Party's success in running the application on an Existing Solaris System; if Sun cannot replicate this, then the application is not an Eligible Application.

4.3 Upon receipt by Sun of all necessary information from Party, Sun will use commercially reasonable efforts, as described below, to ascertain the cause of the Eligible Application's problem and provide a remedy for that problem.

4.4 Remedies provided by Sun are limited to the following:
a) In the event Sun determines the problem to be caused by the Solaris 10 OS, Sun will use commercially reasonable efforts to deliver to Party a patch to the Solaris 10 OS.

4.5 Notwithstanding the above, or any part of this Agreement, in no event shall support under this Agreement exceed more than one hundred man hours per Eligible Application. In no event shall support under this Agreement include on–site support. Assistance from Sun to Party to resolve problems that prevent an application from becoming an Eligible Application are specifically excluded from this Agreement. The foregoing limitations apply notwithstanding any failure of essential purpose of any limited remedy.

5. GUARANTEE

5.1 The Guarantee offered under this Agreement provides that, if Party's Eligible Application experiences a problem when running on the Solaris 10 operating system, then Sun will provide Party with support as described in Section 4 above during the term of this Agreement as Party's sole and exclusive remedy.

5.2 This Agreement and the Guarantee will terminate if (1) the Eligible Application is changed, modified, enhanced or altered during the term of this Agreement; (2) the manufacture or service of any portion of the Eligible Application is discontinued; (3) Party has failed to comply with its obligations as specified in this Agreement; (4) an Eligible Application remedied in accordance with this Agreement is later modified changed, enhanced or altered by Party; (5) the Eligible Application is not used in a production environment or is not commercially available; (6) the term of the Agreement ends, as described in Section 2 above.

5.3 SUN HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES THAT MAY BE IMPLIED UNDER APPLICABLE LAW, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF NON–INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND QUALITY.

6. LIMITATION OF LIABILITY

6.1 Sun shall not be liable for any loss or damage whatsoever, whether for breach or in tort resulting hereunder.

6.2 Neither party shall be liable for any indirect, punitive, special, incidental, or consequential damages in connection with or arising out of or related to this Agreement (including loss of business, revenue, profits, use, data, or other economic advantage), however it arises, whether in breach or in tort (including negligence), even if that party has been previously advised of the possibility of such damage.

6.3 Liability for damage shall be excluded, even if this remedy fails of essential purpose. The parties acknowledge this is a reasonable allocation of risk.

7. PARTY WARRANTY, INDEMNITY AND RESPONSIBILITY FOR BACKUP

7.1 Party warrants that it owns the Eligible Application and associated intellectual property rights or has the right to provide Sun the Eligible Application and all information and submissions as required by Sun to perform under this Agreement.

7.2 Party agrees to defend and indemnify Sun and its licensors from and against any damages, costs, liabilities, settlement amounts and /or expenses (including attorneys' fees) incurred in connection with any claim, lawsuit or action by any third party that arises or results from Sun's performance of its obligations under this Agreement.

7.3 Party shall have the sole responsibility for adequate protection of back–up data and/or equipment used and shall not make any claim against Sun for lost data, re–run time, inaccurate output or work delays resulting from the services, information or the use of Sun's technology hereunder.

8. MISCELLANEOUS

8.1 Agreement for the Benefit of the Parties. This Agreement is made for the benefit of the parties hereto, and not for the benefit of any third party. Neither party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither shall have any right, poser or authority to create an obligation or responsibility on behalf of the other.

8.2 Headings. The headings used herein are for reference only and shall not be considered as substantive parts of this Agreement.

8.3 Construction. This Agreement will be fairly interpreted in accordance with its terms, without any strict construction in favor of or against either party. This Agreement constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter and supersedes any prior or contemporaneous agreement.

8.4 Provision Found Invalid. If any term or provision of this Agreement is found to be invalid under any applicable statute or rule of law then, that provision notwithstanding, this Agreement shall remain in full force and effect and such provision shall be deemed omitted, unless such omission would frustrate the intent of the parties with respect to any material aspect of the relationship established hereby, in which case this Agreement shall terminate.

8.5 Governing Law. Any action related to this Agreement will be governed by California law, excluding choice of law rules. The parties agree that any action shall be brought and venued exclusively in the United States District Court for the Northern District of California or California Superior Court for the County of Santa Clara. This Agreement will not be governed by the United Nations Convention of Contracts for the International sale of goods, the application of which is hereby expressively excluded.

8.6 Authority. If you are signing and agreeing to the terms of this Agreement on behalf of Party, then by selecting the "Accept" button below, you are representing that you have authorization to sign a legally binding contract on behalf of Party, and Party hereby signs and agrees to be bound by the terms and conditions of this Agreement through you as its authorized representative.